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2012 DIGILAW 167 (ORI)

Sitikantha Mishra v. Union of India

2012-03-27

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.K. NAYAK, J. In this writ application the Petitioner prays for quashing the communication dated 18.01.2010 under Annexure-16 issued by Opp. Party No.3, the Professor & Director-in-charge of Indian Institute of Tourism & Travel Management, Gwalior, Madhya Pradesh (in short the 'IITTM') to the Reader of IITTM Eastern Regional Centre, Bhubaneswar directing him not to allow the Petitioner to enjoin upon himself any official capacity till a decision on his present position is taken. Further prayer has been made to allow the Petitioner to enjoin as Professor & Administrator of IITTM, Bhubaneswar Centre & to function as such & for direction to the Opp. Parties to release his salary. 2. The IITTM, Gwalior is an autonomous body under the Ministry of Tourism, Government or India & is registered under the Society Registration Act. Its headquarters is situated at Gwalior & its Eastern Regional Centre has been established at Bhubaneswar. It is managed by a Board of Governors as per the terms of its Constitution, Rules & Regulations & byelaws. The Director of IITTM is its Chief Executive Officer & the Secretary of Board of Governors & has the duty & responsibility to look after the day to day administration & implementation of the decision of the Board of Governors & the Ministry of Tourism. 3. The Petitioner's case is that in pursuance of advertisement issued by the IITTM under Annexure-2, the Petitioner made an application & was selected & offered appointment for the post of Professor in Business Studies on contract initially for a period of three years as per letter of the Director, IITTM dated 04.01.1897 under Annexure-3. In pursuance of the letter of appointment, the Petitioner joined the post on 20.01.1997 as he was assured by the then Director of the Institution that the Petitioner's appointment will be regularized subsequently. While the Petitioner was continuing in the post of Professor, on 20.02.1998 he was transferred to Bhubaneswar Centre of IITTM against the vacant post of Professor Subsequently, in pursuance of the letter of the Administrative Officer of the institute dated 17.06.1999, the Petitioner was directed to takeover charge of the post of Administrator of the Bhubaneswar Centre & accordingly on 21.06.1999, he took over charge of Administrator as per charge report (Annexure-4). The Petitioner's initial appointment as Professor was extended on 12.01.2000 till 31.03.2000 & subsequently from time to time vide Orders Dated 06.07.2000, 01.10.2001, 01.05.2002, 14.05.2003 & 16.03.2006 as per Anenxure-5 series. 4. It is stated that since the time of its establishment in 1983, except Group 'C' & Group 'D' employees, who are the Non-teaching, staff, all faculty & other staff members of IITTM were being recruited on contract basis & their services were extended from time to time. On the request of the Ministry of Tourism, the Staff Inspection Unit (SIU) of the Department of Expenditure, Ministry of Finance conducted an assessment of the manpower requirement of IITTM, Gwalior & submitted its report in 2002 recommending the Government for regularization of 68 number of posts out of which 24 posts were for Bhubaneswar Centre. In its recommendation the SIU suggested for regularization of one post of Professor & Administrator in the pay scale of Rs.16,400,22,400 for Bhubaneswar Centre. 5. While the Petitioner was working as Professor & Administrator at the Bhubaneswar Centre of the Institute on contract basis, in pursuance of an advertisement published in March, 2006 for the post of Director, IITTM, Gwalior, the Petitioner applied for the said post & was selected & appointed as Director on contract basis for a period of three years as per Order Dated 08.06.2006 (Annexure6) of the Director-in-charge, IITTM & Member Secretary, Board of Governors. The Petitioner joined the post of Director of IITTM. On 12.06.2006 as per the letter of Additional Director General, Department of Tourism, Ministry of Tourism, Government of India, the Petitioner was kept in additional charge of the post of Administrator, IITTM, Bhubaneswar Centre till further order. It is stated that Government of India vide their letter No.7(2)/2002-IITTM-Part-11 dated 12.10.2006 conveyed their sanction for regularization of posts in IITTM as per the assessment & recommendation of SIU which was implemented as per the decision of the Board of Governors, IITTM in its 31st meeting dated 04.12.2006. It is claimed by the Petitioner that as per the decision of the Board of Governors, the Petitioner's service in the post of Professor/Administrator of IITTM, Bhubaneswar Centre was regularized with effect from the date of his initial appointment, i.e., 20.01.1997 as per IITTM office Order Dated 15.01.2007 (Annexure10). The regularization of the staff of IITTM. It is claimed by the Petitioner that as per the decision of the Board of Governors, the Petitioner's service in the post of Professor/Administrator of IITTM, Bhubaneswar Centre was regularized with effect from the date of his initial appointment, i.e., 20.01.1997 as per IITTM office Order Dated 15.01.2007 (Annexure10). The regularization of the staff of IITTM. Gwalior as well as Bhubaneswar Centre was intimated to the Ministry of Tourism, Government of India vide letter dated 20.01.2007 (Annexure-11) issued by the Director (Petitioner). It is further stated that the Petitioner's contractual appointment as Director, IITTM, which would have otherwise ended on 08.06.2009, was extended till 31.12.2009. It is alleged that on 01.09.2009 the Petitioner wrote a letter to the Hon'ble Minister, Tourism through Secretary of the Ministry for regularization of his appointment as Director, as decided by the Board of Governors, but the same was not responded & instead an 25.09.2009 a fresh advertisement was issued far recruitment to the past of Director an contractual basis, which was challenged by the Petitioner by filing a writ application bearing No.5183 of 2009 in the High Court of Madhya Pradesh. The said Writ Petition was dismissed by an Hon'ble Single Judge on 15.12.2009, against which Writ Appeal No.595 of 2009 was preferred. However on 31.12.2009 the Petitioner handed aver charge of the past of Director, IITTM to one Dr. Sandeep Kulshrestha, Senior mast Professor of Gwalior Centre & reported at Bhubaneswar Centre on 01.01.2010 to discharge his duties as Professor & Administrator of Bhubaneswar Centre of IITTM. It is alleged that while working as Professor & Administrator at Bhubaneswar Centre of IITTM, an 21.01.2010 the Petitioner learnt from the Director-in-charge of IITTM that the Ministry of Tourism instructed him not to place any note/file before the Petitioner till a decision is taken about his status. In a state of confusion & dilemma about his position the Petitioner made a representation on 22.01.2010 to the Secretary, Tourism & Vice Chairman, Board of Governors ventilating his grievances. While a response to his representation was yet to be received, on 28.01.2010 the Director, IITTM, referring to a letter of Ministry of Tourism No. 28 (2) dated 28.01.2010, sent a letter (Annexure-16) to Dr. While a response to his representation was yet to be received, on 28.01.2010 the Director, IITTM, referring to a letter of Ministry of Tourism No. 28 (2) dated 28.01.2010, sent a letter (Annexure-16) to Dr. S.K. Lenka, Reader of Bhubaneswar Centre restoring him as the Nodal Officer of Bhubaneswar Centre & directing him to ensure that the Petitioner does not enjoin upon himself any official capacity till such time as a decision an his present position is taken. 6. It is contended an behalf of the Petitioner that his appointment as Professor was regularized with retrospective effect from the date of his initial appointment & that for joining the past of Director he did not resign or get relieved from the past of Professor/ Administrator & therefore, his lien in the past of Professor was continuing & as such, his contractual appointment in the past of Director having came to an end, he must be deemed to be continuing in the past of Professor at Bhubaneswar Centre of the IITTM & therefore, it is unjust & illegal an the part of the Opp. Parties to prevent him from holding the past of Professor/Administrator & discharging his function as such. 7. Opp. Party Nos.2 & 3 (IITTM & its Director) have filed a counter affidavit stating that the Petitioner's initial appointment as Professor was an a contract basis & the Petitioner accepted such appointment & joined on 20.01.1997 which was extended from time to time. The Petitioner an his own representation was transferred from IITTM, Gwalior to its Regional Centre at Bhubaneswar as Professor. The Petitioner's appointment as Professor was last extended by Order Dated 16.03.2006 up to 10.09.2006 or till the post was filled up on regular basis, or till the incumbent for the post was regularized, whichever was earlier. But pursuant to the advertisement for appointment to the post of Director of IITTM on contract basis, the Petitioner applied for the same & on being selected he was appointed to that post. The appointment order does not contain any clause with respect to saving of his previous extended contractual appointment as Professor. Condition No. viii in the appointment order restrained the Petitioner to hold the charge of any other post than the post of Director. The appointment order does not contain any clause with respect to saving of his previous extended contractual appointment as Professor. Condition No. viii in the appointment order restrained the Petitioner to hold the charge of any other post than the post of Director. Therefore, as soon as the Petitioner submitted his joining as Director of IITTM, his contractual appointment as Professor came to an end Since the Petitioner was not holding any regular/permanent appointment as Professor, he cannot have any right of lien against the post of Professor. It is further stated that on his joining as Director of IITTM, he was kept in additional charge of Administrator of the Bhubaneswar Centre as per the letter dated 12.06.2006. Keeping him in such additional charge of Administrator would not mean that the Petitioner was appointed to that post. The recommendation of the SIU for regularization of 68 number of posts, out of which 24 posts including the post of one Professor were meant for Bhubaneswar Centre, was accepted by the Ministry of Tourism, Government of India vide Order Dated 31.10.2006 & accordingly the Board of Governors in its 31st meeting dated 04.12.2006 took the decision approving agenda Item No. 10 & regularized the existing incumbents against the post recommended by the SIU to which appointments were made following procedure for recruitment, with effect from the date of their joining. The agenda item No.10 along with Minutes of 31st meeting of the Board of Governors has been filed as Annexure-R/17. It is contended that since on the date of decision regarding regularization taken by the Board of Governors the Petitioner was not the existing incumbent against the post of Professor, inasmuch as he had already abandoned the post of Professor & joined as Director, he cannot be said to have been regularized in the post of Professor. It is stated that since at that point of time the Petitioner was the Director of IITTM, he misused his official capacity, got the office Order Dated 15.01.2007 (Annexure 10) issued regularizing his service in the post of Professor/ Administrator of Bhubaneswar Centre with effect from the date of his initial appointment, i.e., on 20.01.1997 & accordingly intimated the fact of such regularization to the Ministry of Tourism, Government of India under his own letter dated 20.01.2007 vide Annexure-11. The regularization order (Annexure 10) was the own doing of the Petitioner as he himself approved file noting in that respect vide Annexures-R/19 & R-20. It is stated that as per Rule 22 of the Rules & Regulations regarding Constitution of IITTM the appointing authority in respect of post of Professor is the Board of Governors & not the Ministry of Tourism. The Petitioner in his capacity as Director though illegally got an order issued regularizing his appointment in the post of Professor, he never intimated the same to the Board of Governors in order to cover up his illegal act & kept the same a secret from the Board till he demitted the office of Director. His communication to the Ministry of Tourism about his own regularisation in the post of Professor is of no consequence, since the Ministry was not the appointing authority of Professor &) therefore, had nothing to do with such communication. It is stated that the Petitioner's extended contractual appointment as Director was to end on 31.12.2009 &, therefore, the Ministry of Tourism directed him vide letter dated 30.12.2009 (Annexure-R/21) to hand over charge of the post of Director to the Senior most faculty at Gwalior but never directed him to submit his joining at Bhubaneswar Centre, because of simple reason that he was no more the Professor of IITTM. The Petitioner, however, unfairly compelled the Accounts Officer of IITTM, Gwalior one day before his demitting the office of Director, i.e., on 30.12.2009 to issue an office order (Annexure-R/22) indicating that on demitting the office of Director on 31.12.2009 the Petitioner was discharging his duty as Professor/Administrator of Bhubaneswar Centre from 01.01.2010 & accordingly suo motu assumed the office of Professor/Administrator of IITTM, Bhubaneswar Centre & started functioning. While the Petitioner unauthorisedly started functioning as Professor/Administrator at the Bhubaneswar Centre of IITTM, a complaint dated 05.01.2010 (Annexure-R/23) was received from the Nodal Officer of Bhubaneswar Centre which persuaded the Ministry of Tourism to direct the In charge Director to ignore the letter of the Accounts Officer under Annexure-R/22 & to restore the position, which was upset at the instance of the Petitioner, & to ensure that the Petitioner did not enjoin upon himself any official capacity till a decision on his present position was taken, vide Ministry's letter dated 28.01.2010 (Annexure-R/24). In pursuance to such direction of the Ministry, the Director-in-charge issued the impugned communication under Anenxure-16. 8. Opp. Party Nos. 2 & 3 have also filed a separate counter affidavit together with Opp. Party No.1-Union of India taking identical stands as have been taken by them. 9. On the basis of pleadings of the parties the questions that fall for determination are whether the Petitioner on his appointment & joining the post of Director, IITTM had retained any lien in his previous post of Professor & whether while his contractual appointment as Director was continuing, he can be said to have been regularised in the post of Professor? It is the admitted position that the IITTM initially created temporary posts without having sanction of the Government of India in the Ministry of Tourism. In order to accord sanction to the posts & to regularize them the SIU of the department of Expenditure, Ministry of Finance conducted an assessment of manpower requirement of IITTM at the request of the Ministry of Tourism & submitted its report recommending the Government for regularisation of 68 number of posts, out of which 24 posts were for the Regional Centre of IITTM at Bhubaneswar including one post of Professor/Administrator. It is apparent from the report of the SIU (Annexure-R/16) that for Bhubaneswar Centre the SIU found justification for four posts of faculty members &, therefore, recommended for sanction of one post each for Professor & Reader & two posts of lecturer on regular basis. The further recommendation of the SIU was that the Professor of the Bhubaneswar Centre shall continue to be in charge of the Regional Centre for the purpose of day to day administration. Therefore, in the list of posts attached to the report one post of Professor/ Administrator was indicated, which essentially means that the post recommended for regularisation was of Professor, who should be in charge of the day to day administration of the Centre. While the Petitioner was continuing on contractual basis as Professor/Administrator of Bhubaneswar Centre, pursuant to the advertisement for appointment to the post of Director of IITTM, Gwalior on contract basis, he made an application for the said post & was selected & appointed on 08.06.2006 & he joined the paid post quitting his service as contractual Professor. Admittedly, he has not resigned from his service as contractual Professor. Admittedly, he has not resigned from his service as contractual Professor. However, non-tendering of resignation in such an event cannot have the effect of retention or continuance of his contractual service or lien in the post of Professor. In Buckingham & Carnatic Co. Ltd. Vs. Venkatiah & Anr., AIR 1964 SC 1272 , the Apex Court observed as under :- "It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence & from other surrounding circumstances an inference to that effect can be legitimately drawn & it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, & normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf." In Aligarh Muslim University & Ors. Vs. Mansoor Ali Khan, AIR 2000 SC 2783 , the Supreme Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned & ceased to be in service. In the instant case by joining the post of Director on contractual appointment on selection pursuant to an advertisement, the Petitioner by his own conduct intended to abandon his service in the post of Professor. Therefore his service in the post of Professor ceased on his joining the post of Director of IITTM on contractual basis. 10. Lien to a post depends upon the fact whether the employee has been appointed in substantive capacity & has been made permanent or confirmed on the said post. In S. Narayana Vs. Md., Ahmedulla Khan & Ors., AIR 2006 SC 2224 , the Supreme Court held that a person can be said to have acquired a Lien on a post only when he has been confirmed & made permanent on the post & regularisation does not connote permanence. In the instant case, the appointment of the Petitioner to the post of Professor was on contract basis & not substantive. Till the time of abandonment of the said post by the Petitioner, the post had not been regularised & not even sanctioned by the Government of India. His appointment to the post of Director was not by way of transfer or deputation. Till the time of abandonment of the said post by the Petitioner, the post had not been regularised & not even sanctioned by the Government of India. His appointment to the post of Director was not by way of transfer or deputation. Therefore, the Petitioner's claim that he had a lien on the post of Professor even when he joined the fresh appointment in the post of Director is unfounded. 11. As per recommendation of the SIU the posts were sanctioned on regular basis by the Government of India & in accordance with the resolution of the Board of Governors of IITTM in its 31st meeting held on 04.12.2006, on Agenda item No. 10, the services of the existing incumbents (emphasis supplied), who were continuing against the posts recommended by the SIU were regularised. But unfortunately, on the date of such Board Resolution the Petitioner was not an existing incumbent in the post of Professor as he had already abandoned the said post much prior to that by virtue of his acceptance of appointment to the post of Director on contract basis. Therefore, the issuance of office order on 15.01.2007 (Annexure-10) at the instance of the Petitioner himself who was then working as Director of IITTM regularizing his service in the post of Professor would not confer on him any right to the said post as the said office order is not in consonance with the Board's Resolution. 12. In the light of the discussions made above, we find no merit in the writ application & are unable to grant any relief to the Petitioner. The writ application is, therefore, dismissed. No costs. B.P. DAS, J. I agree.